Eugene Volokh jumps the shark

by Henry on March 17, 2005

I was writing a post about Eugene Volokh’s “defence”:http://www.volokh.com/archives/archive_2005_03_13-2005_03_19.shtml#1111021309 of the “deliberate infliction of pain, “slow throttling,” and “cruel vengeance” when I saw that Chris had “beaten me to the punch”:https://crookedtimber.org/2005/03/17/volokh-on-capital-punishment-and-cruel-and-unusual-punishment/. I find the argument that the justice system should be used as a means to inflict cruelty in order to satisfy victims’ – and society’s – desire for vengeance rather appalling. It’s a return to the idea that the animating ideal of justice should be vengeance and public display rather than the correction and dissuasion of wrongdoing. Which is not to say that the modern idea of justice doesn’t have its own, more abstract cruelties, as Michel Foucault and Michael Ignatieff have pointed out – but the claim that the justice system sometimes needs to inflict pain for the purpose of inflicting pain is something which we should have gotten rid of a couple of centuries ago. At least Eugene is being honest here. I don’t think it’s unreasonable to suspect that most of the “nonsensical defences of torture”:https://crookedtimber.org/2005/03/15/needles-under-the-nails/ that we see, invoking “ticking bombs”:https://crookedtimber.org/2004/06/18/by-the-power-of-stipulation-i-have-the-power and the like, are so many insincere public justifications of an underlying desire to torture the terrorists not to get information, but because they’re terrorists (and if a few innocents get caught up in the system, you can’t make an omelette &c &c). But that Eugene’s defence is sincere doesn’t mean that it’s not repugnant to a set of minimal liberal commitments that are shared by many leftists, classical liberals, Burkean conservatives and others.

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“But that Eugene’s defence is sincere doesn’t mean that it’s not repugnant to a set of minimal liberal commitments that are shared by many leftists, classical liberals, Burkean conservatives and others.”
If anything, the sincerity of Eugene’s defence should make *him* more repugnant to the named groups.

“I find the argument that the justice system should be used as a means to inflict cruelty in order to satisfy victims’ – and society’s – desire for vengeance rather appalling.”
I completely agree. Of course, extracting the social “desire for vengeance” complete out from other, more legitimate desires isn’t always going to be easy. Punishment isn’t, and can’t be (I think), simply about delivering some sort of merited penalty or compensation; there’s a place for the social expression of horror or anger, and that means some penalties serve a larger purpose than merely reforming the offender or at least keeping them off the street. But there is a huge gap between saying it’s legitimate for a criminal justice system to incorporate the venting of pain by victims and others, and saying it’s legitimate for said victims and others to directly cause pain in revenge. That’s a line that has more to do with basic law and order than any political philosophy.

A qualified yes to all that, since I’m not sure what you mean by “correction” of wrongdoing; if you’re talking about retribution, retributive theories maintain exactly that it IS right to inflict some kind of pain on a wrongdoer, and a hostile witness of retribution can always characterize that infliction as causing pain for the sake of pain. Generally, I’m very suspicious of retribution as a guiding principle, and being suspicious of retribution, I certainly wouldn’t want Iranian methods of punishment to be imported here. Nonetheless, if like Professor Volokh I’m going to be honest, I can’t pretend to be upset by this man’s fate. The heinousness of what he did leaves me anything but horrified by the punishment. So, to be honest, it seems to me that the retributive impulse I dislike has surfaced here, allowing me to appreciate much of the symbolism of his ordeal. If there is to be retribution at all, why not let the families of the victims participate? Why not give them direct, rather than vicarious vengeance? Is Volokh demonstrating bloodlust here? Yes, and to be honest, it’s a bloodlust that, to some degree, I share. And I don’t think I’ll lose a minute of sleep over it tonight.

I actually don’t support the death penalty.
But I am pretty sure people who support killig monsters sleep in a bed with their head on a pillow.
Ahh the smell of narcissism in the morning, it smells like modern liberalism.

“I can’t pretend to be upset by this man’s fate. The heinousness of what he did leaves me anything but horrified by the punishment. So, to be honest, it seems to me that the retributive impulse I dislike has surfaced here, allowing me to appreciate much of the symbolism of his ordeal. If there is to be retribution at all, why not let the families of the victims participate?”
You’re right that the retributive impulse is a legitimate (and probably near-universal) one, C. And it’s a fair question how best to incoporate it into the struture of punishment and justice. (As I mentioned in the other thread, I’m open to arguments, whether Islamic in origin or otherwise, that such retribution ought to have a “confrontational” aspect to it.) But there is an important line which that vicariousness serves to keep in place. “Vicarious vengeance” isn’t exactly vengeance, because it’s collective or social in nature; it’s not you taking what is “yours” from him because he hurt you or your loved one, etc. It’s everyone saying, “We cannot tolerate this,” which properly sublimates the retributive aspect to a concern for, as I said, basic law and order. To talk casually, as Volokh did, about how he’d personally like to twist the guy’s neck, isn’t to embrace order; it’s to embrace ego-driven retribution, pure and simple, and hence poses a much smaller obstacle to going all the way to simple vigilantism. So no, honesty requires that I admit I probably won’t lose a minute of sleep over the killing of this guy either. But I would lose a minute of sleep over the possibility that the hurt my next door neighbor feels, however great, is, in itself, sufficient justification for him to kill a guy.

“the idea that the animating ideal of justice should be vengeance and public display rather than the correction and dissuasion of wrongdoing…which we should have gotten rid of a couple of centuries ago.”
Correction of wrongdoing? Is your argument against retributivism based on the idea that criminal punishments should transform the character of criminals? Talk about centuries-old ideas! Even if some people are potentially susceptible to moral correction, surely others are incorrigible, and someone who kills 20 kids is likely to be among them.

Hmm. I think we can’t totally ignore the retributive aspect of punishment because it offers the best reason not to over-punish people. When you rely too much on the detterence you are punishing someone for social effect. That should be limited by our retributive understanding. When you are trying to rehabilitate, that can take much longer and require extreme measures which are not fair compared to the offense. Trying to excise the retributive aspects of punishment from the justice system can cause injustices in other directions.

I don’t share Volokh’s convictions, but if you lived in a society where most people thought like Volokh, the Iranian practice might be fully rational. The justice system should satisfy the felt need for vengeance enough that vengeance doesn’t pursue remedies outside of the legal system. That doesn’t legitimate vengeance, but it does acknowledge the reality of it.
The arguments made in this post and the prior one against the death penalty are somewhat beside the point. What is striking about Volokh’s post is not his support of the death penalty, which puts him in the company of many, but his support of employing torture as part of the execution. If you don’t support the death penalty at all, obviously you won’t accept his position. The more interesting question is why someone might support the death penalty and disagree with Volokh.

I’d want to be a bit more precise about what it is in Volokh’s post that’s truly repugnant. As Russell said, retributive theories of punishment by their nature involve imposing some sort of harm or “pain” on the criminal. The deprivation of liberty is one kind of harm; physical pain is another. I don’t think you can say that “minimal liberal commitments” preclude the state from intentionally inflicting pain as part of punishment.
What’s disgusting about Volokh’s piece is how it drips with his visceral enjoyment of that pain. One can think that vicious criminals deserve, in some sense, severe punishment without being so satisfied about it, without wanting the victims to play a barbaric role in inflicting it. Indeed, one can think that certain criminals “deserve” such punishments and yet not think we should inflict them; for: “use every man after his desert, and who shall ‘scape whipping?”

I don’t think it’s unreasonable to suspect that most of the nonsensical defences of torture, invoking ticking bombs and the like, are so many insincere public justifications of an underlying desire to torture the terrorists not to get information, but because they’re terrorists (and if a few innocents get caught up in the system, you can’t make an omelette etc. etc.).
I can’t speak for other defenders of torture (by some definitions), but I, for one, do not fit this description. My defense of torture is based on my belief in its necessity in some cases to prevent terrible crimes, just as my support for capital punishment is based on my belief in its powerful deterrent effect. I could even countenance the kind of death-by-torture Volokh describes, if I were somehow convinced that its deterrent effect would sharply reduce the number of particularly heinous murders committed.
But I have absolutely no sympathy with Volokh’s view that mistreatment of criminals is good because of any satisfaction it may bring the criminal’s victims. Indeed, I find it difficult to understand why any kind of punishment would evoke feelings of satisfaction in anyone. As I’ve said before, punishment is a horrible, unhappy business that reminds us all of the profoundly imperfect nature of humanity–including ourselves, the punishers. We would surely all do away with it completely, if it weren’t all too often necessary.

“Generally, I’m very suspicious of retribution as a guiding principle, and being suspicious of retribution, I certainly wouldn’t want Iranian methods of punishment to be imported here “
Retribution is not of the essence here, nor are various methods of punishment. The essence is what the normative framework of a State is allowed to be vis-a-vis its citizens – or subjects, as some apparently see it.
If you buy the thesis that the State has the right to arbitrate death, pain and torture to the degree that states like Iran or Saudi Arabia do so, you get for free all the other wonderful human right accessories these countries lavish their citizens with. And this is not some abstract discussion of theoretical slippery slopes either.

Wow, that really makes me lose respect for Volokh. The problem is not so much that the sentiments he expresses are so vile — although they are — but that the whole thing reeks of fake macho-posturing. I think that one of the things that characterizes contemporary conservatism — and, in fact, unites its disparate elements — is an emotional attraction to macho vengeance fantasies, and, indeed, the belief that indulging in such fantasies somehow consitutes the height of moral seriousness since it involves expressing moral outrage about evil. In my experience, those of us who reacted to Sept 11 by becoming conservatives did so not on the basis of any well-thought-out belief that Bush’s foreign policy was necessarily going to make us safer, but because that’s the side of the political fence that seemed to be more in touch with the expression of those kind of feelings.

What’s wrong with “vengeance”? Can you produce a rational objection that doesn’t boil down to a visceral feeling that “I don’t like it”? Why is your visceral objection any more rational or valid than the opposite visceral reaction (“This monster should suffer for what he did”)?

To support Henry’s remark at the bottom of the post that this isn’t a left-right issue, and that even conservatives should be appalled by this, one might take a look at this quite nice post by Maimon Schwarzhchild. I don’t often agree w/ Schwarzchild, but this is a post worth looking at.
http ://therightcoast.blogspot.com/2005_03_01_therightcoast_archive.html#111104848012461035
(forgive my ignorance as to how to put in a link properly)

It’s NOT just duelling visceral reactions. Volokh’s reason has failed him. It fails him right here:
“A couple of people pointed out the risk of error; and it’s always possible that we’re going to convict the wrong man. That’s a decent argument against the death penalty generally, though I’m not persuaded by it. And it’s certainly a great argument for fixing problems that may increase the risk of wrongful conviction — locking up the wrong man for life isn’t much better in my book than executing the wrong man.”
I am sure he has no trouble in discerning that a killer who tortures his innocent victims before death is worse than a killer who doesn’t. I am sure that if he were wrongfully convicted and given the choice of being sentenced to life imprisonment, executed as painlessly as possible, or tortured to death, he would not have trouble figuring out what sentence to pick. But he fails to ask this question–the “what if it were me” question, or the “what if it were my son” question, which is the basis for much of our morality. A convicted murderer is assumed to be so subhuman that the question does not need to be asked–even with the certain knowledge that not all convicted murderers will be guilty, and that goes double in Texas and 10X in Iran.
This is irrational. Torturing the innocent before killing them makes the crime worse, or it does not.
In general, with some notable exceptions like Jim Henley, libertarian arguments are shot through with a failure to ask “what if it were me?” “Would I rather pay higher taxes or be indefinitely imprisoned?” “Would I rather make less profit because of environmnetal regulations or be tortured?” “Would I rather be forbidden from owning a gun or from marrying my wife?” Anyone who claims that those are comparable usurpations of power, all equally illegitimate, is not asking the question “what if it were me?”

Katherine wrote:
“Anyone who claims that those are comparable usurpations of power, all equally illegitimate, is not asking the question “what if it were me?””
and PJS wrote:
“I think that one of the things that characterizes contemporary conservatism—and, in fact, unites its disparate elements—is an emotional attraction to macho vengeance fantasies, and, indeed, the belief that indulging in such fantasies somehow consitutes the height of moral seriousness”
It’s precisely this combination of a total lack of imagination combined with a deeply held but totally unexamined belief in their own essential ‘goodness’ which explains both the failure to ask the ‘what if it were me?’ question and the total hypocrisy at work in individuals who agitate for the deposing of governments like that of Iran while at the same time giving vent to the worst, most base, macho violent fantasies.
I can’t express enough how dangerous this combination of total dumb-headed ignorance and cruelty is or express quite how angering some of the view points expressed by the likes of Volokh and the torture-apologists are.
It’s just dumbfounding.

Here’s one for all to ponder.
Not only is Islamic law dealing with murder more barbaric than contemporary Western standards, it’s also more enlightened, civilized, and even, more Christian.
How’s that? Well the aggrieved family can choose the punishment to be inflicted for the convicted murder, (which punishment is usually death.) Or, the aggrieved can forgo such punishment and forgive the offender, which is usually, but not always, accompanied by a payment, the blood gelt.
So there is a place in Islamic law for forgiveness, for reconciliation, if the aggrieved so chooses. Where is there such a place for forgiveness, for the possibility of redemption (that great Christian theme) in our traditions of jurisprudence, both classical liberal and ecclesiastical?
Apologies for the numerous errors, spelling and otherwise, but I’m seriously pressed for time right now….

Katherine, if I understand your point, we shouldn’t punish murderers at all. I mean, if I were wrongly convicted of murder, I’d want there to be no punishment for the crime.
Anyone who suggests that Eugene is given to macho posturing hasn’t had the pleasure of meeting or familiarizing himself with Volokh’s work.
I find it odd that there’s an assumption that we agree on the ends of punishment (supposedly, correction and dissuasion of wrongdoing). Minimal liberal commitments surely require both more and less than those. (For full effect, read the “surely” with the same tone that the original post has.)
Further, I find it odd that, in a public culture in which academics can debate almost anything, and in which previously unthinkable things happen every day, we’re supposed to be shocked that a legal academic disagrees with the apparent public consensus on punishment. Why is this different from anything else?

The cognitive dissonance that exists among conservatives who simultaneously adhere to the notion that individuals should have more power than the state and only states should have the power to kill has always confused me. Strict adherence to their purported core beliefs suggests that if the state has the power to kill after a protracted judicial procedure, individuals with rights greater than the state should be permitted to kill wantonly.

You don’t understand my point at all. Volokh says he sees no moral difference between imprisoning, executing with minimal pain, and torturing to death an innocent person–that all three are about equally bad. That’s a ridiculous position; if he put himself in the shoes of that person, it would be immediately obvious.

“You don’t understand my point at all. Volokh says he sees no moral difference between imprisoning, executing with minimal pain, and torturing to death an innocent person—that all three are about equally bad. That’s a ridiculous position; if he put himself in the shoes of that person, it would be immediately obvious.”
Cake or death?

“The fact that Volokh actually wrote the words “I like civilization, but…” tells me all I need to know about the man.”
I guess you can write off Aeschylus’s “Euminides” and Sophocles’ “Antigone” as well then, which also bring forth the notion that civil institutions need to maintain respect for earlier, tribal notions of justice.

To advert to one of the posts near the top, Volokh’s sincerity is relevant. If he is not sincere, there is not point in responding to his position. An insincere position is just bullshit, and subsequent discourse is a waste of time. Volokh’s sincerity (which I do not doubt; I have met the man) legitimates this entire thread.

“‘Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”
Nor is there any judicial proceeding so reliable that we can ever be sure that the right person is being punished. All human justice lies under that cloud, so let us abandon death and cruelty in our efforts to deal out justice.
The problem I have with people of Volokh’s persuasion–and there are many of them–is that they believe that, somehow, humans can stand in the place of god and deal out perfect justice. This is not heaven; we are not angels. History teaches us, over and over again, that legal systems which incorporate torture are invariably unjust: the wrong criminal is somtimes identified, the unpopular are punished more harshly than the popular. As in war, the desire to inflict pain overrules the will to see justice done; indeed some people who desire to inflict pain use the system to their personal ends. Deliberate cruelty corrupts: both systems, where it attracts the cruel, and individuals, who are made the more cruel by the practice of cruelty.
None of this is news. I wish there was no need to say it again.

The *conservative* principle Volokh misses here, I think, is the value of humility as a restraint on the worst impulses in man. Suppose you adopt the most retribution-focused idea of justice, and agree arguendo (blech) that the “desert vampire” has forfeited any right to humane treatment, and put aside all doubts as to his guilt. Still the gain from having an execution-by-torture rather than the modern, solemnly pain-minimizing variety is at best trivial, and Volokh even acknowledges this.
Against that gain one must set– as Volokh fails to set– the cost of giving rein to the arrogance and bloodthirstiness of a crowd; of creating a vengeance-frenzy which is not nearly so easy to quiet as to arouse; of leaving a great big bludgeon of collective sentiment lying in the street for any demagogue to pick up. Volokh has blogged extensively on the horrors of the twentieth century. Therefore he has no excuse for ignoring the dangers of bloodlusting crowds.

Well, if no other good comes from this, Eugene Volokh has disqualified himself from holding a judgeship on the federal bench.
Perhaps, but if Alberto Gonzales has to step down for some reason, Volokh will make an ideal candidate for Bush’s next Attorney General.

While Volokh has now retracted his view, on grounds somewhat related to the ones nicholas weininger discusses above, it is refreshing to see that CT commenters are as predictable as ever. We get the “macho vengeance fantasies” psychobabble/slander one-two, and we get the standard pooh-poohing of retributivism as benighted and irrational (needless to say, the alternatives are simply assumed to be morally superior; no rational reason is offered for this superiority).
As a side note, one of the best articles I’ve read on the subject of retributivism was Michael Moore’s* piece, in the Feinberg/Gross philosophy of law textbook.

“I find the argument that the justice system should be used as a means to inflict cruelty in order to satisfy victims’ – and society’s – desire for vengeance rather appalling.”

This is the crux. Is it possible that Volokh (with many others) does not understand the category difference between individuals and the state?

It is legitimate for individuals to feel a desire for vengeance, and it is therefore permissible to discuss if, how, and when they might act on this desire. But it is not legitimate for the state for feel a desire for vengeance, and it is therefore not permissible to entertain notions of how the state might extract vengeance on behalf of individuals.

I’m surprised that no-one has yet raised the issue of the famous Michael Dukakis debate gaffe when Bernard Shaw (no, not the other one, the one from CNN) asked him what his response would be if Mrs. Dukakis were the victim of a violent crime. Michael Dukakis responded dispassionately about the proper duties of the state. However, his failure to even address the possibility violent individual passion was unimpressive in the eyes of the electorate. Or at least, that’s how it was spun afterward.

In short I think the correct answer for Dukakis would have been “Like anyone else, I’d want to kill the perpetrator with my bare hands, but that has nothing to do with our justice system, or any proper justice system”; and in my charitable moments I think Volokh was groping toward this subtlety with his shockingly ill-considered (for someone in his position) remarks.

On further reflection: I would agree with Mr. Fox above that if we’re going to have retribution as some component of our system of punishment (and of course we are), participation by victims in that retribution could well spiral out of control into vigilantism pretty quickly. That isn’t a conclusive argument against all victim participation, however. It does bear saying that we do afford victims and their families some part in the retributive process by allowing them to testify at sentencing hearings (that there’s a retributive motive at work here seems to me indisputable). I don’t see a danger of vigilante action from this.

I have to respond as well to the poster named Chris: with all due respect, it’s my not very original view that retribution IS vengeance (sublimate it however you like). For many reasons, and partly because I responded so strongly to the Iranian punishment narrative, I’m thoroughly convinced that the role of retribution in punishment should be as cribbed, cabined, and confined as possible. The gloating tone that a generally reasonable and civilized man like Professor Volokh took in describing what happened, and the ease with which I could sink into similar gloating, have reminded me just how dangerous the retributive impulse is.